Comodato (loan for use): what it is and what obligations it creates (articles 1740 to 1752 of the Civil Code)

The comodato is the loan for use: one party hands over a non-fungible thing to another so that the latter may use it for a certain time and then return it. Its legal regime in Spain is found in articles 1740 to 1752 of the Civil Code, which regulate it within the loan contract and assign it a defining note: it is essentially free of charge.

The legal definition appears in article 1740, which distinguishes the two classes of loan:

"By the contract of loan, one of the parties delivers to the other either some non-fungible thing so that the other may use it for a certain time and return it, in which case it is called comodato, or money or another fungible thing, on condition of returning the same amount of the same kind and quality, in which case it simply retains the name of loan. The comodato is essentially free of charge. The simple loan may be free of charge or with an agreement to pay interest."

The distinction matters: if there is consideration for the use, there is no longer a comodato. Article 1741 settles it by providing that "if any emolument is involved that the one acquiring the use has to pay, the agreement ceases to be comodato", and adds another key consequence: the lender (comodante) retains ownership of the thing lent, while the borrower (comodatario) acquires its use, but not its fruits.

Transmission to heirs

Article 1742 establishes that the obligations and rights arising from the comodato pass to the heirs of both contracting parties. The exception is the loan made "in consideration of the person of the comodatario": in that case, the latter's heirs have no right to continue using the thing lent. The rule has its logic: if the lender lent the thing trusting a specific person, that personal bond is not inherited.

Obligations of the comodatario

The Civil Code regulates in detail the duties of the one who receives the thing:

• Ordinary expenses. Article 1743 obliges the comodatario to "pay the ordinary expenses that are necessary for the use and preservation of the thing lent".
• Conforming use and term. Under article 1744, if the comodatario devotes the thing to a use other than that for which it was lent, or keeps it in their power for longer than agreed, "they shall be liable for its loss, even if this occurs by fortuitous event". It is an exceptional aggravation of liability: the one who breaches assumes even bad luck.
• Appraised thing. Article 1745 provides that, if the thing lent was delivered with an appraisal and is lost, even by fortuitous event, the comodatario is liable for the price, unless expressly agreed otherwise.
• Deterioration from use. On the opposite side, article 1746 exempts the comodatario from "the deterioration that occurs to the thing lent by the mere effect of use and without their fault".
• Prohibition of retention. Article 1747 prohibits the comodatario from retaining the thing "on the pretext of what the lender owes them, even by reason of expenses": there is no right of retention in the comodato.
• Plurality of comodatarios. If several persons jointly receive the thing, article 1748 makes them jointly and severally liable.

Obligations of the comodante

The one who lends also assumes duties:

• Respecting the agreed use. Article 1749 prevents the comodante from reclaiming the thing "until after the use for which it was lent has concluded", although it opens a door: if before that term they have an "urgent need" of it, they may reclaim its restitution. This is the so-called legal right of early reclaim for urgent need.
• Comodato without a term. If neither a duration nor a specific use was agreed, and the latter does not follow from local custom, article 1750 allows the comodante to reclaim the thing at will, and in case of doubt the burden of proof falls on the comodatario.
• Extraordinary expenses. Article 1751 obliges the comodante to pay the extraordinary expenses incurred for the preservation of the thing, provided the comodatario notifies them before incurring them, unless they were so urgent that the outcome of the notice could not be awaited without danger.
• Defects of the thing. Article 1752 makes the comodante who, knowing the defects of the thing lent, had not made them known to the comodatario, liable to the latter "for the damages they may have suffered for that reason".

Comodato, lease and loan for consumption: the differences

Article 1740 draws two borders worth keeping clear. The first separates the comodato from the simple loan or loan for consumption: in the comodato a non-fungible thing is delivered to be used and returned - that very thing -, whereas in the simple loan money or another fungible thing is delivered on condition of returning "the same amount of the same kind and quality". Whoever lends a thousand euros does not expect the same banknotes; whoever lends a car in comodato does expect that car.

The second border separates the comodato from the lease: gratuity. Both contracts grant the use of a thing, but in the lease the use is paid for and in the comodato it is not. Hence the forcefulness of article 1741: "if any emolument is involved that the one acquiring the use has to pay, the agreement ceases to be comodato". It is not a harmless label: the applicable regime depends on the name, and a "comodato" with hidden consideration will be judged as what it really is.

Why it matters in practice

The comodato is behind everyday situations - lending premises, a vehicle, tools, a home to a relative - that are usually formalised verbally and end up being litigated when the thing deteriorates, is not returned or the lender reclaims it early. The legal regime fills the silences of the agreement, but experience advises documenting in writing the thing lent, its condition, the permitted use and the term, because in case of doubt the burden of proof weighs on the comodatario.

Three points deserve special attention when closing the agreement: the faithful description of the condition of the thing (which sets the bar for attributable deterioration), the provision of who bears the extraordinary expenses and the early-reclaim clause for urgent need, which the law grants the lender but whose proof may be disputed. And a documentary warning: even if it is free of charge, a comodato over real estate should be put in writing, because it accredits the comodatario's possession and avoids confusion with a lease or usucaption.

Sources

• Civil Code, articles 1740 to 1752 (consolidated text, BOE)